Last week, Andy Sellars responded to a post I had made about the free speech critique of copyright mistake, where I provided his statement that “Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed,” as an example of why it’s important to draw a distinction between how the word “content” can be used in a general sense and how the word is used in a specific manner in First Amendment jurisprudence, as shaped by US courts.

It’s well-worth a read. Today, I’d like to continue the discussion.

Sellars correctly notes that “The crux of Hart’s argument is that people like me (and Powell, Lange, Volokh, and Lemley) are using ‘content’ incorrectly in the First Amendment context. This is not pedantic. As Hart notes, the word ‘content’ carries a lot of weight in the First Amendment realm. Finding a restriction to be content-based invites strict scrutiny, from which few restrictions survive.”

Sellars response: “I stand behind those words, but I certainly do not mean to suggest that copyright-regulates-content-and-is-therefore-unconstitutional. There are those that go that far; I’m not one of them. Hart’s critique, however, takes an impermissibly narrow view of content-based restriction under the First Amendment. Copyright is a content based restriction of speech as First Amendment law traditionally defines that term, but, I argue, should be viewed as one of the classic, time immemorial exceptions to the traditional prohibition of content-based restrictions.”

Sellars goes on to provide support for this argument in his post.

From a normative sense, there’s certainly no problem with Sellar’s contention that copyright should be considered a “content-based restriction of speech as First Amendment law traditionally defines that term.” Others have advanced that idea, and while I disagree with it, everyone is entitled to their own opinions.

But I disagree that this contention is correct in a descriptive sense.

Copyright is not a Content-Based Regulation of Speech

To reiterate, courts entertaining a First Amendment argument against a law are concerned with whether it acts to suppress ideas.

At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions “rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.”

For these reasons, the First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny. In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue. 1Turner Broadcasting System v. FCC, 512 US 622, 641-43 (1994).

Contrary to Sellars assertion, copyright law is not a content-based restriction of speech” under this definition. In fact, it is not even a content-neutral regulation in First Amendment parlance, a point made explicit by the Supreme Court in Eldred v. Ashcroft.

But again, this doesn’t mean copyright law is immune from the constitution’s proscription on infringing freedom of speech. As Eldred points out, copyright law has built-in free speech safeguards: the idea/expression distinction and fair use. The effect of these safeguards is the same as the tests used outside of copyright law, it’s just the legal terms of art that are different.

Perhaps nothing illustrates this idea better than Triangle Publications v. Knight-Ridder Newspapers. The lower court had — for the first time in US history — defeated a copyright claim based on a First Amendment defense. 2Triangle Publications v. Knight-Ridder Newspapers, 445 F. Supp. 875 (D Fla 1978). On appeal, the 5th Circuit affirmed the lower court’s decision — but on the grounds of fair use rather than a First Amendment defense. 3Triangle Publications v. Knight-Ridder Newspapers, 626 F.2d 1171 (5th Cir 1980).

So when Sellars says:

Hart (and Prof. Greenberg, whom Hart cites) seem to be defining ‘content-based’ as efforts made to suppress ideas instead of means. Copyright is not ‘content-based,’ the argument goes, because ideas are not monopolized under copyright, and copyright makes no effort to preference certain ideas over others. Copyright addresses means. You can say what you want, you just can’t use protected expression to do so — we all know the quote from Eldred about using “other people’s speeches.” And they’re not alone in arguing this. The esteemed Chemerinski Treatise also suggests that “content-based” restrictions can be broken down into either (a) viewpoint-based or (b) subject-matter based, and those that are neither are content-neutral. Copyright is clearly neither.

This is an incomplete view of content-based restrictions.

He is ignoring the the clear import that law has given to the definition of “content-based.” It is not only me (and Prof. Greenberg) who has defined “content-based” in the way I described, it is the Supreme Court and lower courts — the same courts that came up with this language in First Amendment jurisprudence in the first place — that define it this way.

The Goals of Free Speech

Sellars next identifies some of the underlying goals of the First Amendment’s limit on abridging the freedom of speech.

The policies of the First Amendment similarly favor drawing “content-based” restrictions broadly, as the Court has. The concerns around government regulation of speech go beyond controlling content as a proxy for controlling viewpoint, a concern raised by Hart vis-à-vis Turner. The worry about undue interference in the marketplace of ideas is not our only concern in First Amendment law. There is a fundamental autonomy to speech that we identify and respect. We are all repulsed by the thought of someone telling us “you can’t say/print/post that,” whatever “that” is. We do not want to have to worry, or self-censor, or feel in any way restrained in our speech. (Imagine, for example, a law prohibiting the use of “filler words” in public discourse. Clearly not viewpoint or subject matter based, and yet certainly likely to receive strict scrutiny.) The right to unencumbered expression is a natural right recognized by the First Amendment, limited by our law only in areas where we have another overriding concern. And thus any regulation of speech that depends on regulating the exact words used should invite strict scrutiny, be it embraced in a viewpoint judgment or not.

It’s correct that fundamental autonomy to speech is an important policy of the First Amendment — not the only policy, but perhaps the one that most people readily grasp.

But autonomy to act freely is not without its limits. One rather salient limit is on your freedom to act when it impinges on someone else’s own freedom. Or to put it another way, “Your right to swing your arms ends just where the other man’s nose begins.” 4Zechariah Chafee, Freedom of Speech in War Time.

“In my judgment, every principle of justice, equity, morality, fitness and sound policy concurs, in protecting the literary labours of men, to the same extent that property acquired by manual labour is protected.” 5Wheaton v. Peters, 33 US 591, 672 (1834) (J. Thompson dissent). However one characterizes the species of rights secured by copyright law, these are rights that Congress protects pursuant to an expressly enumerated power authorized by the Constitution. What’s more, copyright creators have their own speech interests that must be considered under the question of infringement. 6I’ve previously written on this subject, see Speech Interests of Creators and The Chilling Effect of Copyright Infringement for example.

Protecting the freedom of speech advances many goals beyond autonomy. The familiar refrain of Eldred that copyright is the “engine of free expression” illustrates most plainly how the First Amendment is only one tool of many for advancing these goals. Sellars, and other free speech critics of copyright, are concerned that the balance between copyright protection and the First Amendment limitation has tipped to the detriment of freedom of speech. But we should be equally as concerned that free speech can be negatively impacted if the balance tips the other way. As the Supreme Court noted:

It is fundamentally at odds with the scheme of copyright to accord lesser rights in those works that are of greatest importance to the public. Such a notion ignores the major premise of copyright and injures author and public alike. “[T]o propose that fair use be imposed whenever the ‘social value [of dissemination] . . . outweighs any detriment to the artist,’ would be to propose depriving copyright owners of their right in the property precisely when they encounter those users who could afford to pay for it.” And as one commentator has noted: “If every volume that was in the public interest could be pirated away by a competing publisher, . . . the public [soon] would have nothing worth reading.” 7Harper & Row v. Nation Enterprises, 471 US 539, 559 (1985).

Despite the contrast in our approaches, however, Sellars and I reach the same conclusion. He writes:

But here’s the thing that may distinguish me from others that take this position: I’m okay with copyright existing as a content-based discrimination. I firmly believe that the First Amendment was not designed to trump the Article I power of Congress to provide limited-time exclusivity to writings. I maintain that copyright (done well) is still an incredibly valuable tool for the creation and dissemination of culture. I agree with Hart when he argues that copyright is the engine of free expression. And I agree with Hart when he claims that copyright’s own “built in free speech safeguards” account for copyright’s First Amendment analysis. This is a perfectly accurate statement of the Court’s approach, at least in our post-Eldred pre-Golan world. (And I’m inclined to believe that this Court will only undercut the First Amendment role when it takes up Golan next term.)

Copyright’s Procedure

Where we depart is at Sellar’s concern that the First Amendment is not adequately represented in the latest approaches to protecting copyright:

But this does not mean that the First Amendment has no role to play in the copyright context. As an unprotected category of speech, it is still subject to the procedural protections that govern all speech regulation. Because another concern guides our First Amendment jurisprudence: the fear of overeager or premature action by the government in the name permissible speech regulation. As I detail fairly extensively in my article above, when adjudication of legality depends entirely on the exact words used and their meaning, courts wait to make sure that the speech meets one of the proscribable categories before they take it out of circulation. Our doctrine has created procedural protections to make sure that lawful, legal speech is not retrained or punished in the name of getting unlawful, proscribable speech (like infringing speech). The law does not require full adjudication, as Freedman v. Marylandshows, but it requires a neutral party to make that determination before speech is enjoined. This is the central problem I identify with Operation In Our Sites: no serious effort is made by any neutral party to determine the legality of speech before websites find their domains seized.

I disagree for several reasons — though the following reasons differ from my reasons for saying that the seizure of domain names is allowed under current First Amendment jurisprudence (namely, that no content is seized or removed from circulation, it remains in the custody of the site operator.)

First, it makes sense to deal with different kinds of speech with different approaches to what procedures are constitutionally adequate, a point glossed over by Sellars. While it seems attractive to have consistent rules for any case involving the First Amendment, that does little to advance its goals. The justifications for regulating obscenity differ greatly from those for regulating libel; the dangers that can arise out of overzealous regulation also differ greatly. Courts generally avoid treating First Amendment jurisprudence in different types of speech cases interchangeably. For example, the DC District Court noted in 2003 that “The Supreme Court has not extended Blount’s requirements of ‘built-in safeguards’ and judicial review beyond the obscenity context, and lower federal courts have declined to apply Blount and its progeny in other contexts.” 8In re Verizon Internet Services, 257 F. Supp. 2d 244, 262.

Second, the unbroken history of the types of procedures, and procedural protections, available in copyright infringement cases lends support to the idea that existing copyright procedure is constitutionally adequate. Preliminary injunctions are common in infringement cases, and even ex parte injunctions, while rare, are not unheard of. 9For example, see the Order granting a TRO in Capitol Records v. Bluebeat (Nov 5, 2009). Large seizures of pirated and infringing goods are made every year by federal and state law enforcement. Federal administrative seizures of mass quantities of infringing goods are also common. I don’t see any systemic suppression of ideas or viewpoints throughout this history — or what benefits additional procedural protections could bring, and if they are worth the trade-off in detriments they would bring.

Finally, copyright law is simply ill-suited to being called a “government regulation” of speech. Although courts provide the forum for infringement suits, the dispute is a private rather than a public one. The free speech critique of copyright relies substantially on infringement lawsuits as a state action, since the First Amendment doesn’t limit the actions of private individuals.

David McGowan explains the problems he has with the “state action” argument:

It is false to say that copyright “targets” protected speech. The rights do not distinguish between protected and unprotected expression. Specific suits target speech, but in general these are not brought by government officials. They are brought by rights holders, as a trespass action would be brought by a landowner. For all the similarities in analysis, employing the language of general and specific regulations obscures a fact that a straightforward state-action analysis would stress: To the extent that there is “targeting,” or potentially worrisome motives, they involve private rights holders, who probably are after revenue or their own artistic vision, and not government officials trying to feather their nests, hide their misdeeds, or perpetuate their power. 10David McGowan, Some Realism about the Free Speech Critique of Copyright, 74 Fordham Law Review 101, 113-14 (2005).

McGowan’s comparison of copyright infringement to trespass is illuminating. We generally wouldn’t worry about the freedom of speech of someone who breaks into a home, no matter how much they are talking.

In the following passage, she takes a broader look at why copyright law resembles little the content-based regulations of First Amendment jurisprudence, providing a fitting conclusion:

Rubenfeld’s implication that copyright law is at odds with the First Amendment’s aversion to content regulation takes no account of a very important fact: even if the question of whether the defendant has infringed turns in every case on the “content” of both the plaintiff’s and the defendant’s work, the nature of the inquiry into content will not bring into play any of the reasons for the aversion to content regulation. The Court’s express distrust of content-based regulations is more than a convenient knee-jerk doctrinal guideline. It reflects a number of concerns that emerge from consideration of the First Amendment’s animating values. For example, it reflects a concern for equality —that particular categories of speech be treated equally so as to deflect the government from attempting to manipulate public discourse. Second, it reflects a concern to prevent government from regulating speech based on its communicative impact, thus forestalling restrictions of speech that surreptitiously rely on constitutionally disfavored justifications. It reflects a concern to foreclose the possibility that government will deliberately distort debate by preventing the communication of particular disfavored ideas, viewpoints, or items of information. Finally, it reflects a concern with improper legislative motivation.

But a judgment that a copyright defendant’s work reproduces the plaintiff’s, or is based upon it, or distributes or publicly performs it, though it will of course be based on the content of both the plaintiff’s and the defendant’s speech, simply raises none of these concerns. It does not jeopardize the equality of treatment of particular categories of speech so as to enable government to manipulate discussion. It does not turn on the speech’s communicative impact. And it does not raise the risk of an improper government motivation to prevent the dissemination of particular ideas, viewpoints, or items of information that the government disfavors. In fact, the predicate for copyright liability is not the communicativeness of an infringer’s speech at all. It is, rather, its similarity to the plaintiff’s — and even then it is only its similarity to the plaintiff’s expression, not to the ideas or facts therein.

5 Comments

Here’s one for a law school exam: What if the government decided to STRIP certain kinds of speech of copyright protection? For example, Congress might emplower the Copyright Office to classify material as belonging to the public domain following an administrative determination that the material is “lewd” or “indecent”.

I look forward to arguments that convictions for breaking & entering are un-Constitutional violations of the right to free assembly. After all, who’s to say I wasn’t trying to get together with the shopowner for a discussion of political issues?

In the battle between Article 1, Section 8. Clause 8 and the First Amendment, it troubles me that proponents of the First Amendment’s primacy over copyright seems to have taken hold in some circles on the basis of in rem seizures of domain names. Stripped to their essence, the arguments of such proponents seems to be that in rem seizure is just not “due process-y” enough to reflect what they assert is true “due process” (almost invariably a requirement for a hearing on the merits by a neutral member of the judiciary). Never mind that the likelihood the alleged malfeasors presenting themselves in a US court for such a hearing borders somewhere in the vicinity of never and none, lest they find themselves the immediate subjects of in personam jurisdiction.

It has superficial appeal at first glance, but in my view rapidly loses its persuasive force once those pesky things we call “facts” enter the fray. Merely by way of example, two different types of sites were targeted, one being sites used to facilitate the sale of counterfeit goods (by far the largest type), and the second sites allegedly containing an admixture of allegedly infringing and non-infringing information. Moreover, and perhaps on this point I may be misinformed, but to the best of my recollection all of the seizures were associated with sites outside the reach of US courts. Still further, given that the internet is independent of international boundaries, are we now saying that free speech affords equal rights to both “listeners” and “speakers”, even when the “speakers” are foreigners and not otherwise entitled as individuals to rights recognized under the US Constitution. It is axiomatic that US law does not extend (except, perhaps, in some very unique situations not relevant here) beyond US jurisdictional boundaries, and yet those speaking out against the seizures appear willing to extend the normative rule.

Show me the seizure of a site where its pricipals reside within the US and I will be more than pleased to examine the relationship between the two constitutional provisions, but until that happens it seems to me that the discussion based upon the present facts is little more than an academic exercize where ripeness and standing are substantially in doubt.

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.